Most of us don’t think twice about sharing a news article on our Facebook timelines, re-posting a cat gif to our Tumblr blogs or pinning a scarf or cupcake photo to our Pinterest boards. And, indeed, under current interpretations of U.S. copyright law, you can often get away with publishing or republishing creative content online without the author’s permission.
Usually, however, it’s not for the reasons people think. The line separating lawful republication of online content from copyright infringement is not an intuitive one. Worse, it can turn on seemingly trivial technical factors that aren’t within the control of the people (re-)posting the content.
It has less to do with what or why you share and more to do with how.
Copyright infringement is often described in shorthand as “copying” an author’s work without permission, but the U.S. Copyright Act actually gives copyright owners 6 specific rights: (1) reproducing the work; (2) creating derivative works; (3) distributing copies of the work; (4) publicly performing the work; (5) publicly displaying the work; and (6) digital streaming of sound recordings. That’s the gist of them anyway.
These rights have proved troublesome to translate to digital media. IRL, when you lend your friends a book or show them a painting or play them a song, none of those things infringes the author’s copyright because there’s no copies made or distributed. Similar activities online often involve copying a digital file to a new computer server, which counts as unauthorized reproduction. As writer and IP activist Cory Doctorow puts it, “everything we do on the Internet involves making copies.”
Well, almost everything. In 2007, the U.S. Court of Appeals for the Ninth Circuit drew an important distinction in its landmark decision Perfect 10 v. Amazon. While you wouldn’t know it based on the alphabetically prioritized defendant, the Perfect 10 case involved the Google Image Search Engine. Perfect 10, a pornography publisher, accused Google of displaying and distributing its photographic works via the tech giant’s search results. However, the Ninth Circuit drew a distinction between copying and linking to content. It ruled that Google was merely linking to the images in question, which wasn’t the same as reproducing, distributing or displaying copies.
Importantly, the court’s interpretation of the Copyright Act encompassed “in-line linking,” where content from elsewhere is embedded in a web page, for all appearances displayed and distributed by that site’s creator. As long as the copy of the work remains on the original server, the Ninth Circuit decided, it’s not copyright infringement.
Perfect 10 has been criticized for making copyright infringement turn on, effectively, a technological loophole. But the case has now stood for a decade, and its norms have become ingrained in the way online platforms operate. In 2012, the Seventh Circuit issued a similar opinion in Flava Works v. Gunter, which found that a website that embeds infringing videos stored on third-party servers is not itself committing copyright infringement. The lawfulness of in-line linking seems increasingly secure.
Reposting, retweeting, repinning and other forms of social media sharing are therefore likely not to constitute copyright infringement as long as the content is just being republished internally within the same platform. That's because, in most such cases, the files themselves are likely to stay where they are. According to the Ninth and Seventh Circuits, that’s just a link. In addition, if the content is owned by the person who initially posted it, it’s probable that other users have a limited license to share it under the platform’s terms of service.
However, things may get trickier when publishing content across platforms: sharing an image from Pinterest on your Facebook timeline, for example, or posting a Wordpress article to your Tumblr blog. Sometimes, a user may simply be embedding a link. But sometimes the action may involve uploading and storing a copy on the new platform’s server. It depends on the technical specifics of the service, and the difference may not be apparent to the user.
Yet, it can be the difference between infringing the author’s copyright and not.
Meanwhile, any method of sharing that involves downloading the content and re-uploading it elsewhere is almost certainly copyright infringement, despite the fact that it seems to accomplish much the same thing from the user’s perspective.
If they think at all about the copyright implications of what they publish and republish online, most people tend to think their usage is allowed because they’re not making money from it or because they’re giving the author credit or because digital content is subject to different rules or because the author’s rights were somehow waived. These are all largely misconceptions.
Whether a work is published for commercial or non-commercial purposes has much less relevance from a copyright perspective than people assume. Providing attribution or “credit” for a reposted work is usually similarly irrelevant. Works fixed in a digital medium are pretty much treated the same way as works fixed in a physical medium. Where an author has uploaded their own work to an online service, they do sometimes consent to a limited license under the platform’s terms of service, but they rarely surrender their copyright or grant blanket permission for anyone to distribute copies of the work.
Instead, the copyright consequences of what you post and share online are much more likely to be determined based on an opaque technicality: whether your action causes the underlying files to be copied to another server.
If you're concerned about the legal implications of how you or your business uses third-party content, give us a call at 831-275-1401, shoot us an email at firstname.lastname@example.org or schedule a consultation.